United States ex rel. Bowlegs v. Lane

43 App. D.C. 494, 1915 U.S. App. LEXIS 2644

Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

Belator is here seeking the writ of mandamus to compel the Secretary of the Interior to issue a patent for land against which there is an outstanding patent. ’ It is well settled that when a patent for public land has been issued and recorded, the land is no longer a part of the public domain or under the supervision of the Land Department. It is not subject to collateral attack by a third party to secure title to the land through the government. It is conclusive against all persons whose rights do not antedate its issue. If irregularly issued, it may be set aside in a court of competent jurisdiction, in a proceeding instituted by the government itself. In Hoofnagle v. Anderson, 7 Wheat. 212, 5 L. ed. 437, the rule was originally announced by Chief Justice Marshall as follows: “It is not doubted that a patent appropriates lands. Any defects in the preliminary steps which are required by law are cured by the patent. It is a title from its date, and has always been held conclusive against all those whose rights did not commence previous to its emanation., * * * If the patent lias been issued irregularly, tlie government may provide means for repealing it; but no individual has a right to annul it, to consider the land as still vacant, and to appropriate it to himself.” This has been reaffirmed in many cases, and again in the late case of Burke v. Southern P. R. Co. 234 U. S. 669, 692, 58 L. ed. 1527, 1549, 34 Sup. Ct. Rep. 907.

Without considering the graver question of the discretionary power of the Secretary of the Interior to withhold patent from a person whose name appears upon the completed rolls of the Five Civilized Tribes, it is clear that the relator is in no position to compel the issuance of a patent to land not now a part of the public domain, and, for aught that appears, may not be restored to it.

The decree is affirmed, with costs. Affirmed.